While birth injuries are relatively rare, when they happen to your child, the impact can be devastating. Many birth injuries can result in permanent disability and/or lifelong complications. When these birth injuries are caused by medical negligence, parents may be able to file a claim against the doctor or healthcare provider.
A medical malpractice claim requires proof that the at-fault party failed to meet the standard of care, and that this violation caused the child’s birth injury. One way of demonstrating the standard of care is through the introduction of medical literature. However, because this literature is often written by the very same people who may be liable in birth injury claims, it isn’t always reliable. In some cases, it may even be considered junk science.
At BILA, we advocate for families whose lives have been affected by birth injuries. Reach out today to schedule a free consultation with a birth injury lawyer in your province.
Proving Liability in Birth Injury Claims
The key to success in a birth injury case is proving liability. Liability has two essential elements:
- A breach of the standard of care; and
- Causation.
Where the allegation is that a newborn suffered injury due to poor care during labour and delivery (“intrapartum” care), a birth injury lawyer must prove that the doctors, nurses, and/or midwives failed to provide a level of care that met expected standards. We must also prove causation – that the poor obstetrical care resulted in the injury to the baby. As you would expect, proving both is highly dependent on medical literature.
Birth injury cases have additional scientific challenges because the methods of assessing fetal well-being in the mother’s womb are limited and can be imprecise. In most cases involving intrapartum injury, the concern is with avoiding injury by ensuring adequate fetal oxygenation during labour and appropriately responding with interventions when the clinical evidence suggests impaired oxygenation. The main tool used to assess intrapartum fetal oxygenation is by monitoring the fetal heart rate (FHR), usually using an electronic fetal monitor (EFM).
Lawyers and scientists approach the proof of liability in different ways. The legal burden of proof is based on a “balance of probabilities” or “more likely than not.” This threshold of proof is just more than 50%.
On the other hand, scientists use a much higher threshold of proof, usually what is referred to as a 95% confidence interval. It follows, therefore, that scientific literature that tends to deny liability may be using too high a threshold of proof. Lawyers must keep this in mind when evaluating the strength of the case on liability in a birth injury claim.
Lawyers should be skeptical about the scientist’s conclusions until carefully tested against the more relaxed legal burden of proof. Lawyers acting for injured newborns must independently evaluate the literature and apply critical analysis to ensure if and how it applies to each case.
Can Medical Literature Be Used to Prove Liability in Birth Injury Claims?
Lawyers also need to be wary of expert opinions that rely on epidemiology. Epidemiology studies utilize health outcomes in large and diverse populations. Conclusions about what would have happened to an individual child based on the study of large populations of patients might not be reliable.
Every birth injury case is different. Where any one child fits in with the large groups studied in epidemiology may change depending on which variables are emphasized. Outcomes vary and may depend on things like gestational age, birth weight, fetal complications, maternal health conditions such as hypertension, placental disease, infection, and the nature and duration of impaired oxygen supply to the fetus.
With damage assessments in birth injury cases representing some of the largest personal injury cases in the country, there is real incentive for some in the obstetrical community to create obstacles to recovery for injured children. The issue is even more dramatic in the United States, where damage assessments can be more than 10 times larger than assessments in Canada. This has resulted in the publication of unreliable medical literature, or “junk science”.
The Impact of Junk Science in Birth Injury Cases
Junk science may involve conclusions about the medicine that are plainly wrong or conclusions about the medicine that are incomplete or “spun” to suit a particular agenda. Clever authors of junk science tend to adopt the latter approach, spinning conclusions to avoid liability on the part of medical professionals. Experienced, conscientious, and clever lawyers must know when they are presented with junk science. Otherwise, meritorious claims may not be pursued.
There is some junk science in obstetrics.
The obstetrical junk science on standard of care tends to inappropriately diminish the value and importance of EFM for assessing fetal well-being in labour. Make no mistake, EFM, including its proper interpretation, is an essential tool for ensuring that babies are born healthy. If a physician fails to properly monitor fetal heart rate and intervene appropriately if an infant is showing signs of distress, then it may cause a birth injury.
The junk literature tends to improperly describe the purpose of EFM. It is not a tool for detecting cerebral palsy. Rather, it is a tool for detecting impaired oxygenation (lack of oxygen) and the risk of injury. Assertions that different clinicians interpret FHR patterns differently is not a valid reason to question EFM’s efficacy. Suffice it to say that all of the arguments that tend to undermine EFM’s essential importance are based on false premises. Lawyers acting for injured newborns must know why and when to reject defense arguments about EFM’s importance in intrapartum care.
The obstetrical junk science on causation is even more complex and concerning. Causation is primarily concerned with three vital components: (1) when the baby was injured; (2) the “timing” of injury; and (3) how the baby was injured (the “mechanism” of injury). Understanding causation and formulating a viable theory of causation is the lawyer’s biggest challenge.
There are publications from reputable obstetrical journals and organizations that are misleading, if not plainly wrong, on the issue of causation. These publications must not be relied upon. Where defence experts rely on these publications, the lawyer acting for the child and the experts retained to advance the claim must know why these publications are unreliable and how to demonstrate their flaws. This requires attention to detail, a deep understanding of the medicine, and a firm appreciation for how babies get injured in labour.
Skepticism, experience, diligence, and knowledge are the skills that lawyers in birth injury cases require to avoid undue reliance on unreliable scientific literature and to properly advocate for injured children.
How BILA Can Help
When a birth injury causes a disability, proving that medical negligence played a role can be complicated. In many cases, the medical literature on birth injuries – particularly as it relates to EFM – is simply not reliable. A skilled birth injury lawyer will use their knowledge and experience of birth injury claims to demonstrate that this medical literature is more akin to junk science than real science.
If you believe that your child’s birth injury was caused by medical negligence, BILA is here for you. Contact BILA today at 1-800-300-BILA or via our online contact form for more information about a potential legal claim and to discuss your child’s case with an experienced, compassionate birth injury lawyer in your province.
The Birth Injury Lawyers’ Alliance of Canada (BILA) was formed in 2016 by a group of lawyers from across Canada with considerable experience in birth injury cases to promote the effective representation of children and families affected by avoidable injuries occurring at or around the time of birth.
